S.D.Agarwala - (1.) -This is a petition under Article 226 of the Constitution of India. A suit no. 23 of 1981 was filed by Vipin Mehra, respondent no. 3, against the petitioner in the Court of Judge Small Causes Court, Moradabad. The respondent no. 3 is the landlord and the petitioner is alleged to be the tenant of the disputed property. The suit was filed for ejectment and for arrears of rent. The suit was fixed for final hearing on 7-12-1982. On that day the suit was decreed ex parte on the ground that the petitioner did not appear before the Court. On 10-12-1982, just after two days, an application was made for setting aside the ex parte decree under Order 9 Rule 13 CPC. The ground alleged was that the petitioner was not well on 7th December 1982 and as such he could not appear in the Court on the date fixed for hearing of the suit.
(2.) AFTER making the application for restoration on 10th December, 1982, the petitioner made an application on 20th December, 1982, under the proviso to section 17 of the Provincial Small Cause Courts Act for permission to furnish security for the performance of the decree as required by section 17 of the Provincial Small Cause Court Act, (hereinafter referred to as 'the Act'). The application for permission to furnish security came up for orders on 4th of January, 1983. On that very date the Court granted the petitioner permission to furnish security. The petitioner furnished security on that very date. The security was verified and accepted by the Court on that date. The Judge Small Causes Court, by its order, dated 8th of May, 1984 dismissed the application of the petitioner for setting aside the ex parte decree on two grounds; firstly, on the ground that the petitioner had not made an application for permission to furnish security before moving an application for setting aside the ex parte decree as required by the proviso to section 17 of the Act and secondly on the ground that since no medical certificate was furnished for the alleged illness on 7th December, 1982, no sufficient cause was made out for setting aside the ex parte decree. Against the order dated 8th of May, 1984, a Civil Revision No. 106 of 1984, was filed by the petitioner in the Court of the District Judge, Moradabad. The revision came up for hearing before the 1st Addl. District Judge, Moradabad, who by his judgment dated 26th of April, 1985, dismissed the revision. Aggrieved by the above order the petitioner has filed the present writ petition in this Court. I have heard Sri M. A. Qadeer, for the petitioner and Sri Rajesh Tandon for the respondents. The learned counsel for the petitioner has raised two contentions before me. His first contention is that the making of an application for permission to furnish security under the proviso to section 17 of the Provincial Small Cause Courts Act prior to the making of an application for setting aside the ex parte decree is only directory and not mandatory. His contention is that if an application for security has been made within limitation then the mere fact that it was made after the making of an application for setting aside the ex parte decree, the application for setting aside the ex parte decree would not be thrown out as not maintainable.
(3.) HIS second contention is that the petitioner was actually ill on the date when the suit was taken up for hearing. He had obtained a medical certificate but the medical certificate was not filed because of the advice given by the learned counsel, and as such the view taken by the Courts below on the ground whether sufficient cause had been made out or not, is wholly arbitrary and is liable to be set aside. In Principles of Statutory Interpretation IIIrd Edition, page 273 by G. P. Singh, relying on the various decisions of the Supreme Court, the following principle has been culled out to determine whether a particular statute is mandatory or directory The principle culled out is as follows :- " The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other ". Section 17 of the Provincial Small Causes Court Act is as follows :- Sec. 17. Application of the Code of Civil Procedure- (1) The procedure prescribed in the Code of Civil Procedure, 1908, shall save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits, Provided that an applicant for an order to set aside a decree passed ex-parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give, such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed. (2) Where a person has become liable as surety under the proviso to subsection (1), the security may be realised in manner provided by section 145 of the Code of Civil Procedure, 1908". Section 17 quoted above provides that the procedure prescribed in the Code of Civil Procedure shall save in so far as is otherwise provided by that Code or by the Provincial Small Cause Court Act be the procedure followed in all the suits cognizable by the Judge Small Causes Court as well as all proceedings arising out of the said suits. It would, therefore, be clear that section 17 is a provision laying down the procedure to be followed in a suit which is filed before the Judge Small Causes Court and all proceedings arising thereon. It lays down the rule of procedure. Rules of procedure are intended to advance justice and not to defeat it.;